The Liability of European States for Climate Change

• Author: Roger Cox
• Position: Paulussen Advocaten NV, Maastricht, the Netherlands
• Pages: 125-135

RHJ Cox, ‘The Liability of European States for Climate Change’ (2014)

30(78) Utrecht Journal of International and European Law 125, DOI:

http://dx.doi.org/10.5334/ujiel.ci

Scientific findings are signalling that worldwide emissions of greenhouse gases must be cut down drastically

if we are to prevent dangerous climate change. To date however, these crucial and drastic reductions are

not happening anywhere in the world. Can individual European States be held liable for their contributions

to this global issue? Dutch attorney Roger Cox thinks they can and wrote the book Revolution Justified to

explain why.1 His book provided the impetus for the first climate proceedings against a European Member

State: the Netherlands. Also being legal counsel for the plaintiffs in these proceedings and in the midst of

helping to set up similar proceedings in Belgium, Mr Cox was invited by this journal’s editors to sketch some

of the arguments invoked against the Dutch State and to shortly explain why similar arguments could be

invoked by potential claimants in other European countries.

I. Introduction

On November 20, 2013 the Dutch Urgenda foundation2 and 886 individual citizens (hereinafter jointly

referred to as ‘Urgenda et al’) served a summons on the Dutch State in an action to hold the State liable for

its role in causing dangerous global climate change.

Essentially, Urgenda et al state that man’s excessive worldwide cumulative emissions of greenhouse gases

(and chiefly the massive carbon emissions), are significantly changing the chemical composition of the

planet’s atmosphere, causing it to retain more heat and thereby warming the planet. According to the sci-

entific evidence that is brought forward by Urgenda et al, the increasingly imminent consequence of these

anthropogenic emissions is a form of climate change that will take place so rapidly that it endangers the

planet’s ecosystems, the human communities that are dependent on these ecosystems and thus ultimately

1 RHJ Cox, Revolution Justied – why only the law can save us now (Planet Prosperity Foundation 2012).

2 Stichting Urgenda is a foundation established on January 17, 2008 with the (statutory) aim of advancing and accelerating the pro-

cesses needed for a transition to a sustainable society, focusing first on the Netherlands. Among its objectives is the reduction of

CO2. By virtue of this objective and pursuant to Section 305a of Book 3 of the Dutch Civil Code, the foundation claims competence

to conduct a climate suit against the Dutch State in order to protect the collective interests that are at stake.

According to climate science and the 195 signatory States to the UN Climate Convention, every

emission of anthropogenic greenhouse gases contributes to climate change. Furthermore, they

hold that a two degree Celsius rise of Earth’s average temperature is to be considered as a

dangerous climate change to mankind and all of the world’s ecosystems. Using the climate pro-

ceedings of Dutch citizens against the Dutch state as a starting point, the author of this case

note explains why each European Member State’s contribution to dangerous climate change as a

result of inadequate emission reduction policies constitutes a tort of negligence against its citi-

zens and poses a real threat for its citizens’ eective enjoyment of human rights. The author

argues that this makes individual European Nations severally liable for dangerous climate change

and gives European citizens and non-governmental organisations the possibility to request their

Nation State’s competent court to compel the Nation’s government to implement stricter emis-

sion reductions in accordance with what is deemed necessary to help avoid dangerous climate

change and to protect their human rights.

CASE NOTE

The Liability of European States for Climate Change

RHJ Cox*

* Paulussen Advocaten NV, Maastricht, the Netherlands

r.cox@paulussen.nl

Keywords: climate change; greenhouse gas emissions; tort of negligence; duty of care; liability;

breach of statutory duty; causation; human rights; ECHR; ECtHR; IPCC; UN Climate Convention;

Cancun Agreements; policy freedom; political question

UTRECHT JOURNAL OF

INTERNATIONAL AND EUROPEAN LAW